Muskegon County Professional Command Ass'n v. County of Muskegon (Sheriff's Dept.), Docket No. 115399

• Citation: 186 Mich.App. 365,464 N.W.2d 908
• Decision Date: 05 December 1990
• Docket Number: Docket No. 115399
• Parties: MUSKEGON COUNTY PROFESSIONAL COMMAND ASSOCIATION, Petitioner-Appellee-Cross-Appellant, and Teamsters Local 214, Intervening Petitioner-Appellee, v. COUNTY OF MUSKEGON (SHERIFF'S DEPARTMENT), Respondent-Appellant-Cross-Appellee. 186 Mich.App. 365, 464 N.W.2d 908
• Court: Court of Appeal of Michigan (US)

Page 908

464 N.W.2d 908

MUSKEGON COUNTY PROFESSIONAL COMMAND ASSOCIATION Petitioner-Appellee-Cross-Appellant and Teamsters Local 214, Intervening Petitioner-Appellee, v. COUNTY OF MUSKEGON (SHERIFF'S DEPARTMENT) Respondent-Appellant-Cross-Appellee.

Docket No. 115399.

186 Mich.App. 365, 464 N.W.2d 908

Court of Appeals of Michigan.

Submitted Feb. 14, 1990, at Grand Rapids.

Decided Dec. 5, 1990, at 9:04 a.m.

Released for Publication Feb. 11, 1991.

[186 MICHAPP 367] McCroskey, Feldman, Cochrane & Brock by Darryl R. Cochrane, Muskegon, for Muskegon County Professional Command Ass'n.

Warner, Norcross & Judd by Donald J. Veldman and Louis C. Rabaut, Muskegon, for County of Muskegon.

Before MAHER, P.J., and GRIBBS and MURPHY, JJ.

MURPHY, Judge.

Respondent Muskegon County appeals as of right from the Employment Relations Commission ruling that two captains employed by the Muskegon County Sheriff's Department were not executive employees and, therefore, were entitled to vote on representation for collective bargaining pursuant to the public employment relations act, M.C.L. Sec. 423.201 et seq.; M.S.A. Sec. 17.455(1) et seq. Petitioner cross appeals from the commission's finding that the undersheriff of Muskegon County was an executive employee who was excluded from representation under the PERA. We affirm the commission's decision regarding the two captains and its finding that the undersheriff is an executive employee. However, we reverse the commission's ruling that the undersheriff's executive status excludes him from representation under the PERA.

Some time before they commenced the present action, the undersheriff and the two captains employed by the Muskegon County Sheriff's Department approached Teamsters Local 214 with their concerns about various problems they had with their employment. They received instruction from the union regarding how to organize as a separate bargaining unit.

The three officers organized themselves as the Muskegon County Professional Command Association. [186 MICHAPP 368] They petitioned the commission for a representation election in a bargaining unit described as "[a]ll command officers holding the rank of Captain and Undersheriff." In response, the county petitioned the commission for a unit clarification and asked that the present union's recognition clause be amended to add the two captains to the present command unit.

After an evidentiary hearing before hearing referee Joseph B. Bixler, the commission issued a decision and order ruling that the undersheriff was an executive who was excluded from participating in any collective bargaining unit under the PERA and that the two captains were not executives and were, therefore, entitled to representation under the PERA. However, because Local 214 did not wish to represent the captains in its command officers bargaining unit, the commission directed an election to determine if the captains wished to form their own residual unit.

On appeal, both parties challenge the commission's findings of fact and conclusions of law. Although the county agrees with the commission's determination concerning the undersheriff, it contends that the two captains are also executive employees excluded from collective bargaining under the PERA. Petitioner agrees with the commission's finding of fact concerning the status of the three officers, but contends that the commission erred as a matter of law in concluding that an executive employee may not participate in a collective bargaining unit. We agree with petitioner.

Our standard for review of decisions by the commission is well established. Findings of fact by the commission are conclusive if supported by competent, material and substantial evidence on the whole record. Const.1963, art. 6, Sec. 28; M.C.L. Sec. 423.216(e); M.S.A. Sec. 17.455(16)(e); Southfield Police Officers[186 MICHAPP 369] Ass'n v. Southfield, 433 Mich. 168, 175, 445 N.W.2d 98 (1989). However, regardless of the factual findings, this Court may review the law applied by the commission. Judicial review includes a determination of whether a decision of the commission is "authorized by law." Const.1963, art. 6, Sec. 28; Southfield, supra. Decisions by the commission may be set aside on appeal if they violate the constitution or a statute or are based on a "substantial and material error of law." M.C.L. Sec. 24.306(1)(a), (f); M.S.A. Sec. 3.560(206)(1)(a), (f); Southfield, supra.

One of the purposes of the PERA is to declare and protect the rights and privileges of public employees. This policy has been given effect by allowing public employees to engage in collective bargaining. M.C.L. Sec. 423.209; M.S.A. Sec. 17.455(9); Hillsdale Community Schools v. Labor Mediation Bd., 24 Mich.App. 36, 40, 179 N.W.2d 661 (1970); Dearborn School Dist. v. Labor Mediation Bd., 22 Mich.App. 222, 226, 177 N.W.2d 196 (1970). The Legislature has delegated to the commission the power to determine appropriate units for collective bargaining as provided in M.C.L. Sec. 423.9e; M.S.A. Sec. 17.454(10.4) of the labor mediation act (LMA). M.C.L. Sec. 423.213; M.S.A. Sec. 17.455(13); Hillsdale, supra, 24 Mich.App. at 40, 179 N.W.2d 661; Dearborn, supra, 22 Mich.App. at 226-227, 177 N.W.2d 196.

Pursuant to Sec. 9e of the LMA, appropriate bargaining units are

the employees of 1 employer employed in 1 plant or business enterprise within this state, not holding executive or supervisory positions, or a craft unit, or a plant unit, or a subdivision of any of the foregoing units. [M.C.L. Sec. 423.9e; M.S.A. Sec. 17.454(10.4).]

At issue in the present case is the so-called "executive exclusion." This Court has consistently held that the executive exclusion as used in Sec. 9e [186 MICHAPP 370] does not exclude public employees who are executives or supervisors from participating in lawful organizational activity under the PERA. United Auto Workers v. Sterling Heights, 176 Mich.App. 123, 125-127, 439 N.W.2d 310 (1989); Detroit Bd. of Ed. v. Local 28, Organization of School Administrators & Supervisors, AFL-CIO, 106 Mich.App. 438, 443, n. 2, 308 N.W.2d 247 (1981); Hillsdale, supra, 24 Mich.App. at 41, 179 N.W.2d 661; Dearborn, supra, 22 Mich.App. at 227-228, 177 N.W.2d 196.

The definition of a public employee as set forth in M.C.L. Sec. 423.202; M.S.A. Sec. 17.455(2) does not exclude executive or supervisory employees. The LMA excludes "any individual employed as an executive or supervisor" from the definition of employee. M.C.L. Sec. 423.2(e); M.S.A. Sec. 17.454(2)(e). By contrast, the term "public employee" includes all persons in the service of the state. The rights granted under the PERA, including the right to organize for collective bargaining, apply to all public employees. Sterling Heights, supra, 176 Mich.App. at 126-127, 439 N.W.2d 310.

As applied to employees protected by the PERA, the executive exclusion is based on the commission's power to delineate appropriate bargaining units. It merely precludes executive employees from inclusion in units composed of nonexecutive employees. Mecosta Co. Bd. of Comm'rs v. Council 25, AFSCME, AFL-CIO, 166 Mich.App. 374, 379, 420 N.W.2d 210 (1988); United Auto Workers v. Sterling Heights, 163 Mich.App. 8, 11, 413 N.W.2d 716 (1987). Similarly, while supervisory personnel may organize for collective bargaining, they may not be included in groups comprised of executive or other nonsupervisory employees. Sterling Heights, 176 Mich.App. at 126, 439 N.W.2d 310; Dearborn, supra, 22 Mich.App. at 228, 177 N.W.2d 196.

Application of the executive exclusion is made by the commission on a case-by-case basis. Mecosta, supra, 166 Mich.App. p. 379, 420 N.W.2d 210. Neither party disputes the commission's finding that the undersheriff is an executive[186 MICHAPP 371] employee. However, we conclude that the commission's ruling that the undersheriff is excluded from collective bargaining under the PERA is contrary to statute and is based on a substantial and material error of law. Regardless of his executive status, the undersheriff is a public employee, entitled to the rights and privileges granted under the PERA, including the right to engage in lawful organizational activity.

Regarding the commission's finding that the two captains are not executive employees, we find that the commission's decision was supported by competent, material, and substantial evidence on the record.

An executive is generally a full-time employee who exercises statutory duties, whether personally performed or performed by other employees under his supervision. Mecosta, supra, at 381, 420 N.W.2d 716; United Steelworkers of America, AFL-CIO-CLC v. Frankfort, 153 Mich.App. 352, 354-355, 395 N.W.2d 318 (1986). The commission has expanded its definition of "executive" from "policy making heads of major departments" to "an employee who exercises broad discretion even if it is only in regard to effectuating management policy." Sterling Heights, 163 Mich.App. at 12, 413 N.W.2d 716; Detroit Dep't of Transportation v. Supervisors Chapter, DOT Foreman's Ass'n, 109 Mich.App. 141, 143, 311 N.W.2d 319 (1981). Factors to be examined in reaching a determination of executive status include the scope of the employee's responsibility, the extent of his authority, and the interchangeability of his function with other executives. Sterling Heights, 163 Mich.App. at 12, 413 N.W.2d 716.

In deciding whether a job title occupies executive status, the commission may consider several factors, such as who has primary responsibility for developing the budget, who plays a significant role [186 MICHAPP 372] in preparing departmental rules and regulations, the number of executive positions relative to the size of the organization, the degree of interchangeability of functions between the employee and his immediate superior, and the degree of participation in labor negotiations or formulation of collective-bargaining...